RAI$ER SYSTEMS TERMS AND CONDITIONS
By utilizing the Raiser Systems system and software, and by acknowledging below, you accept the following Terms and Conditions.
1. SCOPE OF WORK. Raiser Systems will provide Customer with the all-inclusive web-based fundraising tool identified in your Raiser Subscription Agreement (the “System”).
2. TERM AND TERMINATION. This Agreement shall become effective upon your submission of the Raiser Subscription Agreement and payment of the administrative fees, as well as the first monthly installment payment. The Agreement shall continue for a period of one (1) month (the “Term”), and shall automatically renew unless Customer provides Raiser Systems with written notice of termination no less than fifteen (15) days prior to the end of the current Term. Customer’s failure to provide timely written notice as contemplated by this Paragraph shall be interpreted as and cause an automatic renewal of this Agreement for an additional one (1) month term. Such automatic renewal shall be subject to and incorporate any modifications made in writing to this Agreement.
Notwithstanding the terms of this Paragraph and this Agreement, Raiser Systems reserves the right to terminate this Agreement and any obligations hereunder for convenience upon sixty (60) days’ written notice to Customer and to refuse renewal of the Agreement at its discretion upon thirty (30) days written notice to Customer. Upon termination of the Agreement, all license rights granted to Customer and/or its customers shall terminate.
Any termination for cause by Raiser Systems which is later adjudged to have been improper shall automatically be deemed a termination for convenience.
3. PAYMENT FOR SERVICES. Customer shall timely pay Raiser Systems for use of the System. Interest shall accrue at the rate of one and one-half percent per month (1.5%) on unpaid fees which are outstanding for ten (10) or more days from the date on which payment is due.
4. USE OF SERVICES. Customer shall have full access to the Services during each Term. In the event Customer fails to timely pay for the Services, Raiser Systems reserves the right to immediately deny Customer access to the Services and all content stored therein, without notice. Superseding anything to the contrary herein, Raiser Systems reserves the right to immediately terminate the Customer’s use of the System upon (a) any material breach of the Raiser Subscription Agreement (b) these Terms and Conditions or (c) the misuse of the System for illegal, defamatory, outrageous, illicit, pornographic or other indecent or improper motives.
5. RAISER SYSTEMS’ REPRESENTATIONS AND WARRANTIES. Raiser Systems warrants and represents that it owns all right, title and interest in and to the System, exclusive of any portions that are in the public domain and further represents and warrants that Customer is entitled to the full use of the System consistent with the Raiser Subscription Agreement. Raiser Systems reserves unto itself all rights of every kind and nature except those specifically granted to Customer herein.
6. CUSTOMER’S REPRESENTATIONS AND WARRANTIES. Customer warrants and represents that it owns all right, title and interest in and to all content that it intends to or does place upon the System, exclusive of any portions that are in the public domain.
7. NON-EXCLUSIVITY. In exchange for Customer’s timely and full payment of all sums due to Raiser Systems, Customer shall be granted a non-exclusive license to utilize the System. Customer acknowledges and accepts that Raiser Systems may, and intends, to market the same or similar services as those provided herein to other customers, including potential competitors of Customer.
8. OWNERSHIP OF INTELLECTUAL PROPERTY. Raiser Systems is and will remain sole owner of all processes, functionality, media, content, data, and all other forms of intellectual property not directly entered or transferred into the System by Customer or Customer’s authorized representatives. Customer shall not in any way, directly or indirectly, state or assert to its customers a claim of ownership to the Raiser Systems intellectual property. Customer acknowledges that the System is confidential and proprietary information of Raiser Systems and Customer shall not be entitled to, nor shall attempt to, access or use the source code of the System for any purpose. Such use is acknowledged to cause irreparable harm to Raiser Systems and shall subject any entity or person who so accesses or uses the source code to all legal, equitable and exceptional remedies available at common law or pursuant to statute.
9. RELATIONSHIP OF PARTIES. Customer engages Raiser Systems, and Raiser Systems accepts and agrees to such engagement, for the consideration, and subject to the terms and conditions, set forth herein. Nothing herein shall be interpreted or construed so as to create a partnership or any permanent relationship between the parties or to authorize either party to act as an agent for the other party. Neither party shall be authorized to obligate or to bind in any manner the other party to any affirmation, representation, warranty, or other obligation concerning this project.
10. LIABILITY LIMIT. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL RAISER SYSTEMS OR ANY OF ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY PERSONAL OR PROPERTY DAMAGE, EVEN IF AN AUTHORIZED REPRESENTATIVE OF RAISER SYSTEMS HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL RAISER SYSTEMS BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE VALUE OF ONE MONTH OF SUBSCRIPTION FEES FOR USE OF THE SYSTEM. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
11. INDEMNIFICATION. CUSTOMER AGREES AND COVENANTS TO DEFEND, INDEMNIFY AND HOLD HARMLESS RAISER SYSTEMS AND ITS DIRECTORS, OFFICERS, ITS EMPLOYEES, SUBLICENSES, AND AGENTS FROM AND AGAINST ALL THIRD PARTY CLAIMS, LOSSES, JUDGMENTS AND EXPENSES, INCLUDING ATTORNEY FEES, ARISING OUT OF OR ON ACCOUNT OF CUSTOMER’S USE OF THE SYSTEM, INCLUDING BUT NOT LIMITED TO CLAIMS RELATING TO THE CONTENT UTILIZED BY CUSTOMER OR FOR ALLEGED INFRINGEMENT OR VIOLATION OF ANY TRADEMARK, COPYRIGHT, TRADE SECRET, RIGHT OF PUBLICITY OR PRIVACY (INCLUDING BUT NOT LIMITED TO DEFAMATION), PATENT OR OTHER PROPRIETARY RIGHT DUE TO INFORMATION OR MATERIALS UPLOADED OR UTILIZED BY CUSTOMER AND MAINTAINED OR ALTERED BY RAISER SYSTEMS.
12. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE SYSTEM IS PROVIDED HEREUNDER BY RAISER SYSTEMS “AS IS” AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, RAISER SYSTEMS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SYSTEM, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SYSTEM, WHETHER MADE BY EMPLOYEES OF RAISER SYSTEMS OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY RAISER SYSTEMS FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF RAISER SYSTEMS WHATSOEVER.
13. LIMITATION OF PERSONAL LIABILITY. Any obligation or liability whatsoever of Raiser Systems which may arise at any time from or under this Agreement shall not be personally binding upon, nor shall Customer resort for the enforcement thereof, to the property of Raiser Systems’ trustees, directors, members, shareholders, officers, employees, or agents, regardless of whether such obligation or liability is in the nature of contract, tort, or otherwise. Such exculpation of personal liability is absolute and without any exception whatsoever.
14. SYSTEM UNAVAILABILITY. Raiser Systems shall use good faith and reasonable efforts to ensure the availability of the System. However, Customer acknowledges and understands that Raiser Systems cannot and does not warrant that the System shall be uninterrupted and/or error free. Raiser Systems shall not be liable, for any reason and in any amount, for losses, damages, or claims resulting from the unavailability of the System for any reason whatsoever, including but not limited to routine and emergency maintenance, software and/or hardware failure, and the negligence of Raiser Systems.
15. SECURITY. Raiser Systems takes all reasonable steps to protect users’ information, but does not guarantee that the data will be completely secure from misappropriation by hackers or from other nefarious or criminal activities. Customer is prohibited from violating or attempting to violate the security of the System, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the Customer is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, "flooding," "spamming," "mailbombing" or "crashing;" (d) sending unsolicited email, including promotions and/or advertising of products or services; or (e) forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting. Violations of system or network security may result in civil or criminal liability. Raiser Systems will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Customer who is involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the System or any activity being conducted on the System.
16. SECURITY. In the event that Customer provides Raiser Systems with any confidential information, Raiser Systems will take all reasonable steps to such information, but does not guarantee that the data will be completely secure from misappropriation by hackers or from other nefarious or criminal activities.
17. ADVERTISING. Raiser Systems shall be permitted to use Customer’s name for purposes of advertising. No other information, including confidential or proprietary information, of such Customers shall be used for such purposes by Raiser Systems.
18. NOTICES. Except as explicitly stated otherwise, any notices shall be given to Raiser Systems via electronic mail to email@example.com with request of confirmation of opening electronic mail. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Notice from Raiser Systems to you shall be sent to the billing address on your account.
19. RESOLUTION OF DISPUTES. In the event a dispute arises between you and Raiser Systems, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Raiser Systems agree that any claim or controversy at law or equity that arises out of this Agreement or our services (“Claims”) shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution and we will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.
20. DISPUTE RESOLUTION PROCEDURES AND FORUMS. For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award is within its jurisdiction, such disputes shall be resolved in the Shelby County Small Claims Court, Shelbyville, Indiana. For all other claims, such dispute shall be resolved through binding arbitration or litigation in the Shelby County Circuit or Superior Courts at the sole discretion of Raiser Systems.
21. FORUM SELECTION AND JURISDICTION. In the event any arbitration or legal proceeding is brought by either party, for any reason, in a Court of law, Customer and Raiser Systems agree to submit to the personal jurisdiction of the state courts of Shelby County, Indiana.
22. REMEDIES AND ATTORNEY FEES. In the event of any dispute relating to these Terms and Conditions, the System or the Raiser Subscription Agreement, legal proceeding of any nature, including arbitration, Customer shall pay the reasonable legal fees of Raiser Systems incurred in the legal proceeding if Raiser Systems substantially prevails on its claims or defenses.
23. NO WAIVER. No failure on the part of either party at any time to require the performance by the other party of any term hereof shall be taken or held to be a waiver of such term or in any way affect the complying party’s right to enforce such term. No waiver on the part of either party of any term hereof shall be taken or held to be a waiver of any other term hereof or the breach thereof.
24. NO ORAL MODIFICATION. This writing is intended by the parties as a final expression of their agreement as a complete and exclusive statement of the terms thereof, all negotiations, considerations and representations between the parties having been incorporated herein. No course of dealing between the parties shall be relevant or admissible to supplement, explain, or vary any of the terms of this Agreement. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement between the parties or their affiliates shall not be relevant or admissible to determine the meaning of any of the terms of this Agreement other than those specifically set forth herein. This Agreement can be modified only in writing signed by the party against whom the modification is enforceable.
25. SEVERABILITY. Any provision adjudged to be unenforceable shall be deemed to be modified by agreement of the parties to the minimal extent necessary to become enforceable. However, the invalidity or unenforceability of any particular provision thereof shall not affect the other provisions, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision had not been contained herein.
26. MEANINGS. Whenever a singular word is used herein, it shall also include the plural wherever required by the context, and vice versa; and whenever any gender is used herein, it shall also include the other genders wherever required by the context. “Customer” means Customer and its managers, members, employees and representatives. The terms and conditions of this Agreement represent the result of bargaining and negotiations between the parties, each of which has been represented by counsel of its own selection, and neither of which has acted under duress or compulsion, whether legal, economic, otherwise, and represent the results of a combined draftsmanship effort. Consequently, the terms and conditions hereof shall be interpreted and construed in accordance with their usual and customary meanings, and the parties hereby expressly waive and disclaim, in connection with the interpretation and construction hereof, any rule of law or procedure requiring otherwise, specifically including, but not limited to, any rule of law to the effect that ambiguous or conflicting terms and conditions contained herein shall be interpreted or construed against the party whose counsel prepared this Agreement or any earlier draft hereof.
27. INTEGRATION. This Agreement contains the entire understanding between the parties with respect to the subject matter hereof; all representations, promises, and prior or contemporaneous understandings between the parties with respect to the subject matter hereof are merged into and expressed herein; and any and all prior understandings between the parties with respect to the subject matter hereof are hereby cancelled. This Agreement shall not be amended, modified or supplemented without the written agreement of the parties.
28. NO THIRD PARTY BENEFICIARIES. No provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than the parties any rights, remedies, or other benefits under or by reason of this Agreement.
29. FORCE MAJEURE. Notwithstanding anything herein to the contrary, neither party shall be liable for any delay or failure of performance (other than the obligation to pay monies) to the extent that such delay or failure is caused by any event beyond its reasonable control, including, without limitation, (i) acts of God, war or terrorism, (ii) acts of the government of the United States or of any state or political subdivision thereof (not including acts which result in the loss or termination of any franchise or license of Raiser Systems necessary for the provision of the Services), or (iii) strikes, civil riots or disturbances, fire, floods, explosions, earthquakes, wind, storms, hurricanes, lightning, or other similar catastrophe, whether natural or man made; provided, that the non-performing party is without fault in failing to prevent or causing such default or delay, and such default or delay could not reasonably have been circumvented by the non-performing party through the use of alternate services, sources, workaround plans or other means (collectively, “Force Majeure Condition”).
a. The non-performing Party shall be excused from further performance or observance of the obligation(s) so affected for as long as: (i) such Force Majeure Condition prevail; and (ii) such Party continues to use reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay.
b. Any Party so prevented, hindered or delayed in its performance shall notify the party to whom performance is due by telephone (to be confirmed in writing within one (1) day of the inception of such delay) and describe at a reasonable level of detail the circumstances of such Force Majeure Condition. A labor dispute involving a party, affiliate or their Associates shall not excuse such party from its obligations hereunder. In addition, the refusal of a party or its associates to enter a facility that is the subject of a labor dispute shall excuse such party from its obligations hereunder only if and to the extent such refusal is based upon a clear and present danger of physical injury.
30. GOVERNING LAW. This Agreement shall be governed by Indiana law, without regard to principles of conflicts of law.
31. TIME. Time is of the essence in this Agreement and a substantial and material term hereof.
32. AUTHORITY. By acknowledging below, the signee represents and warrants that he or she is an authorized employee, agent, or representative of Customer, has read, understands, had the opportunity to consult with any necessary professional advisors, voluntarily accepts and has the authority to bind Customer to the terms and conditions of this Agreement.